ITM UNIVERSITY CHHATTISGARH

ASSIGNMENT

SUBJECT - COMPARATIVE PUBLIC LAW

AND SYSTEM OF GOVERNANCE
(Topic -.Case Analysis: I.R. Coelho (Dead) By LRs.
vs. State of Tamil Nadu and Ors)

Submitted To: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
FACULTY , LLM

Submitted BY : Pratham Agrawal

LLM Semester - I
 ACKNOWLEDGEMENT

At the outset, I would like to thank god for his blessings and benevolently granting me vigor and
audacity to complete my assignment successfully . Before submitting my LLM assignment .

It is indeed with a great sense of pleasure and immense sense of gratitude that I acknowledge the
help of these individuals. I would like to thank teacher Department of Law for
her/his support and guidance.

I am thankful to his/her for his/ her invaluable teaching and advise given to me, for helping me in
exploring and understanding the assignment preparation and research methodology better.

PRATHAM AGRAWAL
 DECLARATION

I hereby declare that the assignment entitled "Case Analysis: I.R. Coelho (Dead) By LRs. vs. State
of Tamil Nadu and Ors.” submitted to the ITM UNIVERSITY , is a record of an original work done
by me under the guidance of teacher Department of Law , and this
assignment is submitted in the partial fulfillment of the requirements for the award of the degree of
LLM. The research embodied in this paper have not been submitted to any other University or
Institute for the award of any degree or diploma.
TABLE OF CONTENTS

1. Acknowledgement

2. Declarations

3. Abstract

4. Introduction

5. Literature Review

6. Body / Content

7. Conclusion

8. References
Introduction
There can be amendments made to our Constitution by virtue of which something can be added,
changed or altered in our Constitution. However, this power has only been given to the Parliament.
This power has been exercised many times by the parliament. Another major power given to the
parliament is that it can prevent any statute or Act from being challenged in court on the grounds of
violation of fundamental rights given in the Constitution. This can be done by inserting statutes and
legislations in the Ninth Schedule of the Constitution.

By exercising these powers, the parliament has inserted many statutes in the schedule as a result of
which they are protected from being challenged in the court. However, these actions and powers of
the parliament have been criticised, and many cases have been filed in this regard. The IR Coelho v.
State of Tamil Nadu (2007) is one such case.

This case highlighted the importance of judicial review and the powers of the judiciary in this
aspect. The case is also referred to as the 9th Schedule Case and involved an exhaustive discussion
on Article 31-B of the Indian Constitution. This case removed the shield that the legislature took to
shield the laws violative of fundamental rights from judicial review. The judgement used
Kesavananda Bharati v State of Kerala (1973) as a precedent. The present article explains the facts
of this case, background of the case, issues involved therein, judgement of the court and the opinion
of judges along with its critical analysis.

Details of the case

Name of the case: I.R. Coelho (Dead) by Lrs.

V. State of Tamil Nadu

Citation: (2007) 2 SCC 1, 2007 SCC OnLine

SC 71.

Date of decision: 11/01/2007

Court: Supreme Court of India

Bench: The bench consisted of 9 judges, namely:

◦ Chief Justice Y.K. Sabharwal
◦ Justice Ashok Bhan
◦ Justice Dr. Arijit Pasayat
◦ Justice B.P. Singh
◦ Justice S.H. Kapadia
◦ Justice C.K. Thakkar
◦ Justice P.K. Balasubramanyam
◦ Justice Altamas Kabir
◦ Justice D.K. Jain

Name of the petitioner: I.R. Coelho (Dead)

by LRs
Name of the respondent: State of Tamil
Nadu & Union of India

Laws applied: Article 31-B and the Ninth Schedule to the Constitution

Background of the case

The framers of the Indian Constitution were aware of the fact that no generation has a monopoly of
wisdom, nor has it the right to place its decisions on future generations to mould the machinery of
government according to their requirements. The Constituent Assembly had two choices in front of
them. The first one was to follow the United Kingdom, where the Parliament is supreme and,
therefore, has a very flexible Constitution, and a Constitutional Amendment can be brought by a
simple majority. The second was the Constitution of the United States of America, where the
Constitution is supreme, which makes the amendments too rigid, a characteristic of a federal form
of government, written and rigid Constitution. The framers of the Constitution took a middle path
and made the Constitution of India rigid as well as flexible. Dr. Ambedkar called it a flexible
federation.

Part XX of the Indian Constitution contains

Article 368. This article gives the Parliament power to amend the Constitution. It mentions two
types of amendment:

◦ By a special majority of both the houses of the Parliament (the Lok Sabha and the Rajya
Sabha)

◦ By a special majority of both houses of the Parliament and ratified by half of the states.
Ratified here means introduced as a bill on the floor of the state assembly and passed by
a simple majority, i.e., more than fifty percent are present and voting.

But Article 368 has always been surrounded by questions. What is the scope of Article 368?
Can it amend Part 3 of the Indian Constitution?
All the clouds of confusion were cleared in 1973 when the Apex Court held Article 368 could even
amend Part III of the Indian Constitution.
It basically can amend everything contained in the Constitution, only keeping in mind it does not
disrupt the 'basic structure.

Brief facts of I.R. Coelho vs. State of Tamil Nadu (2007)

This case was referred to by a five-judge Constitution bench in 1999. After the Gudalur Janmam
Estates (Abolition and Conversion into Ryotwari) Act, 1969 was struck down by the Supreme Court
in Balmadies Plantations Ltd. & Anr. v. State of Tamil Nadu (1972). The Act was inserted in the
Ninth Schedule by the Thirty-fourth Amendment Act (1974) of the Constitution. Similarly, Section
2(c) of the West Bengal Land Holding Revenue Act, 1979, was held unconstitutional by the
Calcutta High Court as arbitrary. This Act was also inserted in the Ninth Schedule by the Sixty-sixth
Amendment Act (1990). These amendments were the subject matter in front of the five judges'
bench.
The Constitutional bench took the reference of the Supreme Court judgement of Waman Rao & Ors.
v. Union of India & Ors. (1981) and helo that the laws inserted in the Ninth Schedule, by an
amendment made after 24th April 1973 (the day Keshvananda Bharati case judgement was passed),
can be challenged on the basis of it being violative of the basic structure.

That is reflected in Article 14, Article 19, Article 21 and the principles underlying the said Articles.

Thus, the case was referred to a larger bench of nine judges to relook into the judgement of the
Waman Rao case and determine the final
stance of the Supreme Court.

Issues involved in the case

◦ Whether the Parliament can immune legislation from the fundamental rights by using
the Ninth Schedule of the Constitution after the doctrine of Basic structure has been
propounded.

◦ What would be the effect of such power of the Parliament on the judicial review of the
Court?

Contentions of parties

Arguments put forth by the petitioner

The petitioner argued that Article 31-B with 13 items, was introduced by the Constitution (First
Amendment) Act, 1951 as a one-time measure.
The language of the article did not provide that more enactments could be added in the Ninth
Schedule, and that thus has been highlighted in the case of Shankari Prasad v. Union of India
(1951). Further, items were added either on the basis of earlier decisions of the court or
acquiescence for a long time. Relying on the judgement of Kesavananda Bharati v. State of Kerala
(1973), it was argued that Parliament has no power to alter the basic structure or framework of the
Constitution and that there is no justification for adding more enactments to the schedule.
Enactments added thereafter were open to challenge on the grounds of violation of the basic
structure of the Constitution.

It was further argued that this continuous practice of invoking Article 31-B and placing legislations
and enactments in the Ninth Schedule would result in the impossibility of effective judicial review.
This is because there would be no parameters upon which the validity of the constitutional
amendments could be checked. The petitioners further contended that the power of Parliament and
state legislatures to make laws in conformity withfundamental rights must be treated as a part of the
basic structure of the Constitution. Whether a Constitutional Amendment destroys basic features of
the Constitution must be judged by some principle, that is, individual rights against societal rights.
To put it simply, "regard for the public welfare is the highest law" (salus populli est suprema lex
principle).

It was further submitted that the judicial review is a part of the basic structure of the Constitution
and that it must be made a part of the Ninth Schedule. It was contended that if any act or provision
which has been held unconstitutional by the courts is inserted in the Ninth Schedule, it would
destroy the doctrine of the basic structure of the Constitution.

Inserting any act or provision that has been held as unconstitutional on the ground that it violates
fundamental rights conferred in Part III of the Constitution in the Ninth Schedule would again
destroy the basic structure doctrine. This would also violate the freedoms given to citizens. For
example, any law which has been struck down on the ground that it violated Article 19(1)(a) of the
Constitution would come into force if inserted in the Ninth Schedule.

Arguments put forth by the respondent

It was argued that Articles 31-A and 31-B were incorporated to achieve the goal of social equality.
The directive principles of state policy (DPSPs) and fundamental rights both provide to achieve this
goal. However, DPSPs are dynamic, while the fundamental rights are static. Further, it was
contended that when a competent legislature passes a law, it automatically receives the protection of
Article 31A, which leads to a conclusion that the law cannot be challenged on the grounds of Article
14 & Article 19. Article 31B does not provide any category which should be given the protection.
The respondents contended that Article 31-B provides a constitutional mechanism for validating
statutes that have been struck down on the grounds that they violated fundamental rights contained
in Part III of the Constitution. When a statute is inserted in the schedule, any defects of
unconstitutionality pertaining to the violation of fundamental rights are cured.
It was further argued that whenever a statute is inserted in the Ninth Schedule, it still remains
ordinary legislation. The protection of Article 31B would not be available to such a statute, which
violates the basic structure and is still included in the schedule.

The respondents further contended that the judicial review of statutes that have been given
protection under Article 31-B is not completely denied. It can be done regarding the requirements of
Article 368 and legislative competence. Also, the fundamental rights have not been made
unamendable, untouchable or sacrosanct. If this was possible then only it could be argued that
Article 31-B is unconstitutional because it allows abrogation of unamendable fundamental rights.

It is a fallacy that judicial review is excluded by the said article and schedule in matters related to
the violation of fundamental rights. It was contended by the respondent that when a statute is
declared unconstitutional by the courts, it neither nullifies the will of the people nor encroaches on
the sovereignty of parliament. Similarly, when a decision is neutralised by constitutional
amendment, there is no disobedience of the decision of the court.

The respondents further argued that Article 31-B has stood the test of time and is a part of the
Constitution, which was validly enacted by complying with the conditions and requirements of
Article 368 by the same people who enacted and drafted the Constitution and fundamental rights. It
was not enacted with aim of denrivina neonte or their fundamental rights.

Judgement of the court

Ratio Decidendi

The Supreme Court held that:

 ◦ A law that abrogates fundamental rights contained in Part III of the Constitution may or
may not violate the doctrine of the basic structure of the Constitution. However, if a law
is abrogated and still inserted in the Ninth Schedule, its validity will be tested, and if
provided, it will be invalidated by judicial review.

◦ In order to determine whether a statute violates the basic structure of the Constitution,
its effects on Part III of the Constitution have to be considered.

◦ All the statutes which have been inserted in the said schedule after the judgement of the
Kesavananda Bharati case will have to be tested on the basis of essential features of the
Constitution. Thus, even if a statute is put in the said schedule by way of amendment, it
would be open to challenge on the grounds of basic structure if it violates fundamental
rights.

◦ Whether a statute has to be given protection under the Ninth Schedule has to be
determined by examining the nature and extent of infraction of fundamental rights by
such a statute and on the basis of the basic structure of the Constitution as reflected by
Article 21 along with Article 14 & 19, by applying the rights test. The right test provides
that the form of amendment is not a relevant factor, but its consequences are the
determining factor.

◦ If any statute which has been included in the said schedule is upheld by the court, it
cannot be challenged again. However, if the statute is held to be violative of Part III of
the Constitution and still incorporated in the Ninth Schedule after 24.04.1973, it would
be open to challenge on the grounds of the basic structure of the Constitution.

Obiter dicta

The Court took into consideration the background of the Constitution, its aim and development so
far since its inception. It observed that the Constitution was framed after a detailed study of
numerous challenges and problems like poverty, illiteracy, deprivation, and inequalities on the basis
of caste creed sey and relain The debates in.the constituent assembly provide the importance of
fundamental rights contained in Part III and the obligations of a welfare state in Part IV of the
Constitution. The Court took into consideration various judgements pertaining to the Ninth
Schedule and Constitutional Amendments.

It was observed that there is a difference between parliamentary and constitutional sovereignty.
Articles 14, 19 & 21 form the basis of the rule of law and judicial review. No provision in the
Constitution which has been framed or inserted by exercising plenary lawmaking power can be ultra
vires as there is no ground for challenging its validity outside the Constitution. So, the amending
power has to be within the limits of the Constitution. To determine whether a particular principle or
article of the Constitution falls within the ambit of its basic structure, the object, purpose and
consequences of adding such principle to the basic structure have to be considered.

For example, separation of powers has been held as a part of the basic structure of the Constitution.

The Court observed that, as contended in the arguments by the parties, the power to incorporate
laws in the said schedule without any set criteria has been abused. However, the mere possibility of
abuse is not a valid test to determine the validity of any provision. Thus, there can be no
assumptions regarding the alleged abuse. It was observed that exercising the power to amend and
insert laws in the Ninth Schedule entails a complete removal of fundamental rights. Secondly, the
incorporat of statutes in the said schedule is not controlled by any criteria or factors which could be
evaluated. It results in the nullification of fundamental rights and no control over them.

It was further observed that the aim of fundamental rights is to foster social well-being and
revolution by creating a society in which all citizens are free from coercion or restrictions of the
state. By introducing fundamental rights and DPSPs, the framers of the Constitution made it
obligatory for the government to adopt a middle path between individual liberty and public welfare.
This balance is an essential component of the Constitution. Fundamental rights provide a check on
the power of the state. Thus, when a statute is incorporated into the said schedule, it is completely
immune from Part III of the Constitution, including Article 32. It was further observed that the
original intention of Article 31-B was to protect a limited number of legislations and statutes, but an
unchecked and rampant exercise of the power has led to an increase in the number of statutes
inserted in the Ninth Schedule from 13 to 284 which shows that it is not a mere exception anymore.
The absence of any guidelines regarding the exercise of these powers leads to the absence of
constitutional control, which destroys its supremacy and creates parliantentaiv hegemony and the
absence of judicial review to challenge the validity of such statutes and power.

It was further observed by the court that Article 31-B decides validity on the basis of fictional
immunity. While judging the validity of the constitutional amendment, the impact test has to be
applied. The doctrine of the basic structure of the Constitution requires the state to justify the
invasion and degree of invasion of fundamental rights. There is a presumption that parliament must
legislate in a way that is compatible with fundamental rights. The degree of invasion has to be
decided by the court. Therefore, firstly, whether the fundamental rights have been violated has to be
determined. Secondly, its impact has to be examined, and if it is revealed that it affects or destroys
the basic structure of the Constitution, the consequences must be taken into consideration.

Laws applied in the case

Article 31-B of the Constitution

Article 31-B has been inserted in the Constitution by the Constitution (First amendment act 1951)

Ninth schedule of Constitution

The Constitution of India is an organic or living document. The makers of the Constitution knew
very well that the Constitution needed to be amended with the changing times and the needs of
society. The power to amend the Constitution was given to the hands of the legislature. In order to
free India from the Zamindari system. The Constitution went through its First Amendment in 1951
when the Ninth Schedule became part of this document.

It contains a list of central and state laws that are shielded from Judicial review. Initially, the
schedule had 13 laws, all of them aimed at land reforms, but presently, it contains 284 laws
covering reservation, trade, industries, mining, etc. The tool to bring land reforms in India became a
dustbin for governments. A constitutional dustbin of limitless capacity.
In simple words, the Ninth Schedule tied the hands of the judiciary. Even if a law violated the
fundamental rights it could be protected from being declared void by the judiciary by simply
placing it in the Ninth Schedule outside the scope of judicial review. A key feature of the Ninth
Schedule is that it is retrospective in nature. If a law is added to the Ninth Schedule after it is
declared unconstitutional, it will be considered valid and part of the schedule from the date of its
commencement.

Basic structure Doctrine

The validity of the Constitution Twenty-Fourth Amendment Act 1971, along with the Constitution
Twenty Fifth Amendment Act, 1972 and the Constitutional (Twenty Ninth Amendment) Act, 1972
was challenged in the Kesavananda Bharati vs State of Kerala (1973), popularly known as the
Fundamental Rights case. One of the questions involved in this case was, what is the extent of the
amending power conferred by Article 368 of the Constitution? A special bench of 13 judges was
constituted to hear the case. In the judgement, the court held that Article 368 confers vast power to
the legislature to amend all the parts of the Constitution as long as it does not damage or destroy the
essential elements or basic structure of the Constitution.

In this case, the doctrine of basic structure came into existence in India. Before the Kesavananda
Bharati case, the Supreme Court in I. C. Golaknath & Ors vs State Of Punjab & Anrs. (1967) held,
with a 6:5 majority, that parliament has no right to amend Part III of the constitution under Article
368.

The basic structure is nothing but a tool or judicial innovation to ensure that the legislature does not
abuse the power given to it in Article 368. There is no precise definition of what is part of the basic
structure. It is an evolving concept, and through various judgments, we now have a list of features
that are part of the basic structure. Some of the features are:

1. Supremacy of the Constitution.

2. Unity and sovereignty of India.

3. A democratic and republican form of government.

4. Federal character of the Constitution.

5. Secular character of the Constitution.

6. Separation of power.

7. Individual freedom.

8. Rule of law.

9. Judicial review.

10. Parliamentary system.

 11. Rule of equality.

12. Harmony and balance between the Fundamental Rights and DPSP.

13. Free and fair elections.

14. Limited power of the parliament to amend the Constitution.

15. Power of the Supreme Court under Articles

32, 136, 142, and 147.

16. Power of the High Court under Articles 226 and 227.

This is just an indicative list and not a complete list.

Critical analysis of the case

The Supreme Court, in the present case, has rightly clarified the grey area and ambiguity regarding
Article 31-B and the Ninth Schedule of the Constitution. It has highlighted the continuous abuse of
power given in the article.
Till the present case, there were no criteria or factors that determined the basis for inserting laws
and statutes in the Ninth Schedule. The Supreme Court, in this judgement, gave the test in order to
determine whether a particular statute must be provided protection under the said schedule. The
court also highlighted the objective and original intention of the framers of the constitution to
introduce Article 31-B of the constitution and that due to its abuse, the number of statutes in the said
schedule has increased from 13-284 over time, which meant that these particular acts could not be
challenged if they violated Part III of the Constitution. This issue had to be highlighted, or else it
would limit the power of judicial review of the Court.

However, critics argue that the judiciary is just trying to limit the powers of the legislatures to enact
laws and public policies. Propounding a new theory or doctrine every now and then is not only
hampering the working of the legislature but also adding vagueness and confusion that is already
surrounding the basic structure doctrine. The judiciary has never given any precise definition of the
basic structure nor any complete list that contains what actually is the basic structure. Justice
Mathew, in the Indira Gandhi case (1975), stated that 'the concept of basic structure as a brooding
omnipresence in the sky apart from specific provisions of the Constitution is too vague and
indefinite to provide a yardstick for the validity of an ordinary law.'

Conclusion

The legislature, executive and judiciary are the three pillars of democracy, and each of them is
expected to perform their functions. The legislative functions or the function of lawmaking has been
given in the hands of parliament. The wide powers of the parliament have been expressly mentioned
in the Constitution.The judiciary, on the other hand, has been given the power to interpret laws and
identify the grey areas. One such power of the parliament, which could prevent any law from being
challenged in the courts by inserting it in the Ninth Schedule of the Constitution, was challenged in
the present case.
The present case is one of the most impressive and important judgements delivered by the Apex
Court, where it highlighted the continuous abuse of power given to the parliament in this regard and
further, prevented the misuse by imposing certain restrictions. The judges interpreted the laws and
identified the loopholes. It also stressed on the basic structure doctrine of the Constitution and
devised a test to determine the basis upon which a statute can be inserted in the said schedule and
that the judicial review can still be done if it is in violation of the Part III of the Constitution.

References

1. iPleader blog

2. Indian Kanoon

3. Dhyeya Law

4. Law foyer